By Adebola Olarotimi Lema

State pardon, clemency or prerogative of mercy mean the same thing. The Constitution of the Federal Republic of Nigeria, 1999 as amended states in section 175 (1) (a) as follows; ‘the President may grant any person concerned with or convicted of any offence created by an act of the National Assembly a pardon, either free or subject to lawful conditions”

The state pardon granted to the duo of ‘convicted’ Senator Joshua Dariye and His excellency, Rev. Jolly Nyame have caused outrages in Nigeria to lawyers and non-lawyers alike however it is not a surprise to the writer of this article because the conditions for the grant of same were complied with by the Federal Government. The two (2) conditions for the government to legally exercise these powers are; a) the person granted pardon must have been convicted under an act of the National Assembly; and b) the president must have consulted the Council of State. Senator Joshua Dariye and His excellency, Rev. Jolly Nyame were both convicted under the EFCC Act and Money Laundering Act (both being Acts enacted by the National Assembly). The news of the said pardon also became public after the last Council of State meeting held between the 11th and 18th of April, 2022 (an indication that the President would have consulted the Council of State).

State pardon granted by the President or the State Governor on convicts and the powers of the Attorney General of the Federation and Attorneys General of the States respectively to file nolle prosequi against persons standing trial in Courts are two political weapons created by the Constitution for the executive to exercise subject to the observance of the conditionalities attached. Except for cases where the Court needed to confirm the authenticity of the nolle prosequi; where there was no sitting Attorney General (meaning the Permanent Secretary and Solicitor General cannot exercise same in the absence of an Attorney General), the Court does not interfere in the exercise of such power as exercised by the Attorney General. See Gani Ashiru v State (2018) LPELR -46677 (CA)

In Nigeria under the 4th Republic between 1999 till date there have been three major presidential pardons that have attracted national consciousness and they are;

President Olusegun Obasanjo’s pardon by the then Head of State General Abdulsalam Abubakar: In 1995, Chief Olusegun Obasanjo was tried along with some coup plotters by the General Abacha’s Government. He was later pardoned by the General Abdulsalam Abubakar prior to him contesting the 1999 general election. MD Yusuf contested against him and at the election tribunal, he alleged that Chief Olusegun Obasanjo’s conviction by the military tribunal was a bar to contesting the election as President but the upper Court held that having been pardoned by the then head of state, Chief Olusegun Obasanjo was free to contest the election. The 2nd and the most notorious presidential pardon before now was the pardon granted the former Governor of Bayelsa State, Diepreye Alamieyeseigha by his former Deputy Governor and former President, Goodluck Ebele Jonathan. As outrageous as it was I do not think the exercise was challenged in Court by anyone in Nigeria. The ruling party and the then President was harangued by the opposition party and this was one of the greatest sin of the PDP’s government led by President, Goodluck Ebele Jonathan (as he then was). The party and then President paid dearly for this sin during the 2015 general elections. State pardon for HE. Joshua Dariye and Rev. Jolly Nyame. These state pardons in my view is the most unpopular and senseless steps taken by the Federal Government in the last few months. The President and his political party have three (3) theme under their policies and they are a) fighting corruption; b) economy and c) securities of lives and properties. It is my humble view that the federal government ought to have distanced itself from pardoning these politically exposed persons as this actions have clearly shown that they aren’t interested in fighting corruption and the international community (FATF – financial action task force) whose insistence led to the establishment of the EFCC and ICPC. The abuse of state pardon by the executive is not limited to our climes as can be seen recently in 2017 in the United States where President Donald J. Trump politically pardoned Mr. Joe Arpaio, a former sheriff of Maricopa County, Arizona who was convicted in 2017 of criminal contempt for defying a judge’s order against prolonged traffic patrols targeting immigrants. The said pardon was condemned as amounting to presidential endorsement of the criminal contempt for which the convict was convicted.

Before concluding piece it is important that I let my readers know the views of some senior lawyers (who spoke earlier on this vexed issue) and the Economic and Financial Crimes Commission (EFCC) as well. According to Mr. JIti Ogunye as shared on his facebook page on 16th April, 2022 thus, “under section 175 of the constitution, the prerogative of mercy power to grant pardon, clemency, punishment, reduction or remittal is vested solely in the President, howbeit in consultation with (not approval of) the Council of State. It is the President therefore, that pardoned the convicts. Not Council”. Mr. Femi Falana SAN and J.S. Okutepa SAN share the view that if both Senator Joshua Dariye and Rev. Jolly Nyame were pardoned by the President, then all those jailed for stealing should be pardoned as well. A prosecutor with the EFCC stated thus “the pardon for Dayire is demoralizing. Rotimi Jacobs SAN was the one who handled the case. He has an internal arrangement with the EFCC so his fee is not that much. However, the bulk of the money was spent on investigation. The case started from London. We had to fly there and lodged in hotels. Also, Peter Clark, a UK officer, was the star witness. He was the one who first arrested Dariye in 2004. He had to fly in here on several occasions to testify in Nigeria. Sometimes, when he arrived in Nigeria, the case will be adjourned from one flimsy reason or the other and he will have to travel back and then return to Nigeria. Clark was the one who reveal how Dariye bought a pen for GBP 7,000 and was found with over GBP 40, 000 while his aide had GBP 50, 000. We spent hundreds of Million Naira on this case. Kwarbai was attacked. The scar is still on his head. How would the UK take us seriously?

In conclusion, much as the President of the Federal Republic of Nigeria has not breached any section of the Constitution in the pardon of the both Dariye and Nyame, the manner President DJ Trump was condemned for the pardon of Mr. Joe Arpaio as amounting to presidential endorsement of the criminal contempt can be adopted in this circumstances. In my view it amounts to the APC and President Buhari endorsing corruption in Nigeria, to say the least. The Nigerian people have the options to exercise their voting power against his government for misuse of its presidential power of pardon as was exercised against PDP and Goodluck Ebele Jonathan in 2015.

Adebola Olarotimi Lema is a former Secretary of the NBA Lagos Branch.